Every Occurrence has a Divine Judgement
The Islamic texts of Shari'ah and its general concepts state for the jurisprudents fuqaha and the experts of Islamic legislation, to formulate the widest applicable rule of jurisprudence which says: "Never is there any occurrence without a divine judgement concerning it," as an expression of the spirit of the Shari'ah and an explanation of its reality.
To look for a source for such rule and its source of lightening, we will find many contexts in the Holy Qur'an and the Prophetic tradition hadith which we referred to in our previous books of this series, therefore, there is no need for repeating them.
It is better to mention here a quotation from Imam Ja'far al-Sadiq (a.s.) which refers to the same subject:
"Never is there anything without a law concerning it or a known sunnah (Prophetic tradition)." 3
This rule has a wide ideological and a legislative impact which not only participates in developing the life of Muslims and expanding the sphere of their activities but also in its adaptability to Islamic Shari'ah in order to strengthen the bonds between a Muslim and his Creator.
This rule confirms that no deed or intention done by man - whether good or evil; useful or harmful; concerning individuals or groups unless Islam views its opinion regarding it should fall under one of the following categories: prohibited; obligatory; permitted; disliked; recommended.
Man's acts altogether, being small or big, are described under one of the five above-mentioned categories. In Islam there is a divine judgement for each of them. This generality in Islam gives a Muslim a general rule under which he measures all his actions and evaluates them before performing or committing them.
This universality in Islamic Shari'ah helps man to correct his behaviour; protect the society against disorder and chaos; shows him the right path towards safeguarding the rights, responsibilities and interests against loss and waste; develops in him the spirit of moral and legal consciousness; and instills in him the spirit of responsibility. Therefore, he never takes any decision nor practises any action before he thinks and specifies his legal (Islamic) duty and responsibility towards it.
Thus, a man comprehends in all actions and subjects by taking legal opinion into consideration. For instance, if he finds it (an action) obligatory, will surely try to do his duty and perform his responsibility in the best and absolute way.
But if he sees it prohibited, he will not only refrain from doing it but will also try to avoid what leads towards vain and disaster.
If he sees is it an act permissible, he will freely do it or leave it aside.
And if he sees it undesirable or recommended, he is free to do or abandon it. But due to his sincerity for achieving perfectness in his belief and also as a result of his religious spirit, it is better for him to educate himself of the merits of recommended deeds and leave the undesirable ones.
Necessity and Change of a Divine Law
As we mentioned in the previous chapter that the divine judgement hukum is connected with the nature of an action and its impact. And it is the identical description of the subject which decides (specifies) the nature of a divine judgement hukum, such as prohibition, obligation; permission ... etc; it is a divine judgement itself which discloses the nature of the topic (subject).
Hence, a single action does not have more than one hukum (a divine judgement) in an occurrence. For instance, drinking wine cannot be described in its reality save with prohibition: jihad (holy struggle) cannot be described other than an obligation ... etc. Sometimes, it may happen that man may face some external and unexpected circumstances which may lead to the change of the divine judgment hukum or require the change of peculiarity of an action itself.
Indeed, Islamic legislation deals with such facts with more reality and accuracy. Islam permits the shelving of the original given judgement- the first real judgement - temporarily, if some unavoidable and extraordinary , circumstances happen. In such cases, man is obliged either to refuse or change such judgement in order to ward off danger, hardship and harm against him or his interests.
With this observance, the aim of the exceptional legislation - the secondary real judgement - is safeguarding the essential purpose of Islamic legislation itself which is primarily in the interest of man and society and is to avoid loss and corruption.
According to this Islamic principle, topics of many subjects could be changed. It may happen that an obligatory or permissible act becomes prohibited or a prohibited and permissible act becomes obligatory:
For example, Islam makes it permissible for a Muslim to do a forbidden act if circumstances compel him to do so or by doing so he will be able to ward off, through an impending danger himself or his property or honour. But once such an emergency or compulsion ends, the permission to commit the forbidden will end too.
Allah, the Exalted says:
"... then whoever is driven by necessity, not desiring, nor exceeding the limit, no sin is upon him. Surely Allah is Forgiving, Merciful."
Holy Qur'an (2:173)
To go along with this wise declaration of the Holy Qur'an, the following jurisprudential rule is formed "At the time of necessity, the forbidden becomes permissible".
On the basis of this rule, Islam permits a hungry man at the point of death to eat carrion or the flesh of a dead animal. He may even take by force his legitimate needs from other's properties - if others do not supply his need - in order to ward off destructive hunger of himself and his family.
For this reason, Islam gives the oppressed the right to backbite the oppressor.
The Almighty, Allah says;
"Allah loves not the public utterance of hurtful speech, except by one who bas been wronged. And Allah is ever Hearing, Knowing."
Holy Qur'an (4:148)
Another example for the change of a divine judgement hukum is: the change of a permissible act mubah through transforming it from the state of permission ibahah into the state of an obligation wujub or a prohibition hurmah, according to an urgent necessity which requires such change in order to deal with objectivity and reality with this urgent and exceptional circumstance, until affairs return to their natural course. Thus the natural legislation plays its role as stated in the origin of legislation. Examples of permissible acts mubah which become forbidden, are many, among them is "Every permissible act mubah in which no interest can be achieved except by leaving it aside or harm and loss is resulted for doing it- because of an urgent cause."
For example: Some permitted foods whose eating becomes dangerous for man's life and his health. Like a patient who insists on using certain kind of food prevented by a doctor and which may cause him damage and harm. If he eats such food, which may harm his health or causes him death, he will do a forbidden act and thus commits sin for refusing his doctor's advice.
As this change of permission happens in the individual field, it may also happen in other fields including social, economic, political ... etc.
Regarding the change of the laws of permission in the social field is what happened in Iran when the great jurist mujtahid 4 Mirza Hassan Shirazi who proclaimed his famous verdict fatwa from Najaf in 1891, December about the prohibition of smoking under temporary circumstances.
Because tobacco was monopolized by a British colonialist company at that time, so his verdict was a declaration for an economic war against the usurper colonialists. Consequently smoking became forbidden after its being permissible and lawful because Muslim interests were in danger and required the taking of a decision for the sake of safeguarding the rights of the Muslim community and protecting it from the exploiting enemy. Thus this prohibition took its effect and became obligatory for all Muslims to refrain from tobacco until its main causes were removed. Iranian Muslims including the mother of the then Qajarid king Naseruddin Shah adhered to the prohibition until the agreement with the British company Laws cancelled in early 1892. Thus giving back Muslims the rights to control their own wealth and property.
In similar situations wajib kifa'i 5 becomes wajib 'aini 6 as the necessity is concerned. For example: If an Islamic state, based on Islamic rules, requests that the Muslim country is in need of scientific specialization in special branches of science because of the general interest and it demands that some qualified individuals should do their duty concerning this specialization. This specialization becomes wajib 'aini which was hither-to wajib kifa'i. Thus it becomes obligatory for concerned individuals to specialize in such fields.
Another example is, if a truly Islamic state gives the responsibility or a post in the governmental system to qualified individuals, it becomes obligatory for such individuals to respond to the state's decision without having the right to refuse except in case of a reasonable legal excuse. There are many different examples concerning this subject which are outside the purview of this book.
Before proceeding further, we state once again that such changes in the original hukum are only of a temporary nature caused by expediency in the interests of an Islamic state and the society, and certainly not against public interests. It should, however, be kept in mind that there is no other viable solution except this temporary change under pressing circumstances, and solely in the interest of Islam and Muslims, by a competent Islamic authority and in conformity with the Divine laws of the Supreme Law-Maker and His Wisdom.
The change of divine judgements - caused by urgent circumstances- does not mean to play with the spirit of Shari'ah or scheme against its aims at the whims and narrow interests of unqualified leaders or so-called experts. It is not correct to take this capability in the Islamic Shari'ah as a mean (a cover) to change the judgements and laws or play with them according to one's own will.
This change in judgements has special principles and rules which should be followed in a way which leads to the guarding of principles and rules related to formulating and discovering laws in general.
Regarding the change of judgement- which comes out of a case of expediency - the new judgement has not only its legitimacy as the first one but is also considered as commandment binding upon the concerned group or society.
Likewise, if fasting is compulsory for every mukalf person, provided that some conditions are met, it becomes prohibited for the sick. The prohibition of such fasting becomes like any other legal prohibitions and the sick person's fasting becomes a forbidden act which deserves other laws.
Major Prohibitions in Islam
If we study the forbidden things in Islam deeply and in detail, we will find that proscribing them is a step taken by Islam to protect humanity from perverse conduct and keep it away from dangers and evils.
Through these injunctions Islam protects man's psyche, body and soul within the individual sphere, and it safeguards other human relations and community life, within society from the risks of subversion, perversion and decadence.
Ideologically, Islam makes unbelief and distrust in Allah haram. Also, attributing injustice, incarnation and the like, to Allah the Glorious is haram.
Islam also makes haram superstition, charlatanism, blind imitation and anything that enslaves the mind's inquisitive and creative activity, and prevents a good understanding of life and existence. The relationship between man and Allah remains firm and binding, as it is the source of all human conduct and orientation, and it is the stimulus that moves it on the right path.
With regard to man's self, Islam makes haram anything that may lead to pollute man's inner life, kill his conscience and moral intuition, and that which may change his life to total misery and helplessness, and his conduct to an animalistic one devoid of any human feelings. Thus Islam makes malevolence, hatred. despondency, mistrust, etc. haram, in order to uplift the human soul to the highest level of perfection and cleanliness, and to protect and purify it from unhealthy traits and crookedness of conscience.
With respect to man's body, Islam makes haram all the activities, practices, and actions that are detrimental to health. Therefore, wine-drinking, adultery, eating the flesh of swine, dogs and many other unhealthy animals or for that matter animals killed by strangulation, carrion, and blood are all haram.
When Islam protects man's psyche and his body on the one hand, it pays due attention to protect the community from crime and harmful practices in the domains of sociology, politics, economy, the judiciary, education and so on.
Accordingly, Islam makes haram, oppression, usury, monopoly, cheating, theft, telling lies, backbiting, false witness, cursing, bribery, homicide, gambling, teaching and spreading harmful ideologies and ideas like those made popular through pornographic literature, films and pictures.
By so doing, Islam secures the health of both the individual and the society.
Islam rules that carnal sins which constitute the most grave danger to man and environment are haram.
A good look at these sins, and a deep pondering over them in the light of social experience, scientific research and sound thinking, illustrates to what degree they are dangerous to both the life of the individual and the stability of the society, and so helps one to understand the wisdom behind making these deeds haram in Islam.
It is of a great benefit to cite these prohibited things, which Islam warns Muslims not to commit, as painfully severe punishment is in store for them should they commit such acts, which if committed, may endanger life and social order.
The following are the main haram things:
1. Polytheism. 2. Desperation and despondency about one's fate and the idea that Allah will never have mercy on him. 3. The belief that Allah will never punish oneself. 4. Undutifulness towards one's parents. 5. Homicide. 6. Falsely accusing a married woman of committing adultery. 7. Taking away the orphan's possessions and money unjustly. 8. Fleeing the battlefield of jihad. 9. Usury. 10. Adultery. 11. Sodomy. 12. Witchcraft. 13. Perjury. 14. Bearing false witness. 15. Concealing testimony (about something one knows and can help establishing justice by giving it). 16. Drinking wine. 17. Breaking pledges. 18. Cutting off relations with one's near of kin. 19. Emigration from the Muslim homeland to a place where one's faith becomes a risk. 20. Theft. 21. Telling lies about Allah, His Apostle, Imams and common people or attributing to them something which they did not say. 22. Cannibalism. 23. Drinking blood. 24. Eating swine or flesh of animals that are slaughtered without mentioning Allah's name on them. 25. Ill-gotten money earned by selling wine, or gained through prostitution, dancing, as well as money gained through bribery, and the salaries given by the oppressive regimes when one cooperates with them to prop up injustice and implement their corrupt schemes. 26. Giving short measure and weight. 27. Supporting the oppressors. 28. Pride. 29. Extravagance. 30. Squandering money. 31. Fighting the faithful and callers to Islam. 32. Working as dancers and musicians. 33. Backbiting. 34. False accusation. 35. Cursing the faithful, insulting and humiliating them. 36. Talebearing. 37. Pandering or acting as pimps. 38. Cheating. 39. Sanctimoniousness. 40. Hypocrisy. 41. Ignoring or belittling one's sins and transgressions ...
Apart from these forbidden actions there are a lot more which result in corruption, haram and the ruination of life.
Haram acts are the plague and the greatest danger threatening the life of both the individual and society. Only by steering clear of them, can humankind protect and preserve their body and soul from decay and perfidy.
Medical, social and psychological studies have recently uncovered the grave dangers caused by the haram.
Astonishing figures are emerging from research institutes, about the crimes, ailments and anomalous phenomena and cases in the communities that have dropped the concepts of halal and haram from their behaviour. Such statistics show how urgent it is and necessary to set to work in saving the human race and finding a way out of the predicament in which they wallow, after discarding the divine values and yielding to the bestial way of life. They should return to the straight path of Allah, which is the proof of the Almighty's kindness, mercy and generosity.
Ijtihad (Juristic Reasoning)
Ijtihad and a Divine Law
A law (hukum) based on Islam can he defined as divine legislation or Shari'ah which organizes human life and his divers relations. (Ijtihad is the process practised by a jurisprudent to discover secondary divine legislation (laws) regarding the organizing of human life and his diverse relations or endeavouring to discover and deduce the Islamic laws and regulations from their sources like the laws concerning worship, possession, business, property, judiciary, politics and family affairs ... etc.)
Ijtihad is a learning (knowing) process and has a important, progressive and civil role in the life of an individual and the society altogether with the state. It also participate in developing the civil life and opening the legislative prospects before it. Without the process of Ijtihad, many human activities are difficult to develop in the sphere of an Islamic life.
Human society is a developing entity. Human actions, relationships and activities are ever-increasing and ever-expanding. Many things are invented that were non-existent before. Banks, insurance companies, radio and television and the other discoveries are new phenomena which are to be used correctly and in harmony with Islamic teachings. If there are no fuqaha' (jurisprudents), how could codes and regulations concerning such institutions be derived at?
This process of Ijtihad is responsible for catering to all the needs of the human society and providing answers to all questions which may arise in this field. Without the process of Ijtihad, a faithful Muslim will find himself in a dilemma.
The First Attitude: To petrify, solidify and isolate every new development in life because he has no knowledge concerning his legal responsibility or duty and the ambiguity of such special legislative laws concerning new affairs in human life ...
The Second Attitude: To dissolute from any legal responsibility or obligation and dissolve absolutely in a non-Islamic civilization and principles; to take laws and concepts and specify situations and behaviour by depending on non-Islamic civilizations, principles and ideologies.
In both cases, the attitude will be a tragedy against the dynamic goals of Islam and to stop the spread of the ever-lasting Divine Legislation.
Besides these two attitudes, another attitude which is more dangerous than the two, the idea that Islam is incapable of establishing a developed society and international entity for the Muslim nation and which puts obstacles in its path of progress, which in other words would mean the absence of Divine Mercy and Kindness from the world of mankind and to leave it in disorder and chaos. All these are against the aims of Islam and which contradict the spirit of Shari'ah and the principles of the ever-lasting Islamic Message as the Holy Qur'an and the Prophetic sunnah.
The Most High says:
"... and We ban reveal the Book to you explaining all things, and a guidance and mercy and good news for those who submit."
Holy Qur'an (16:89)
A holy tradition (hadith) says:
"Almighty Allah has revealed in the Qur'an the declaration of all things. He has not left anything needed by His servants unexplained so that no one would say: if (only) this has been revealed in the Qur'an. Yes indeed He has revealed it." 7
Imam al-Sadiq (a.s.) describes the nature of the Islamic message in the following words: "The Qur'an is certainly alive and does not die. It moves as the night and the day, and as the sun and the moon. Its teachings should be obeyed by the last man on earth as it had been obeyed by the first one." 8
By contemplating on these Islamic texts, one realizes that the Qur'an is the origin of Islam; the source of its message; a vehicle for its laws, principles and concepts and a torch which sends the rays of guidance on the planet more brighter or serene than the sun and the moon.
But it is not in our capability nor any one else to understand (realize) life perfectly through the Qur'an nor to discover the laws of life and the Islamic laws from the treasures of this Book (the Qur'anic verses are treasuries, whenever a treasury is opened, you should look at it). 9
This richness of laws and the large ideological wealth which the Qur'anic verses contain need scientific efforts and an ideological declaration capable of drawing from this inexhaustible spring and meet the future needs from these unfathomable treasuries.
It is natural, that to comprehend the deepness of the Qur'an with its legal proof is not clear nor specified in every situation and affair and it is not in the capacity of a jurisprudent (Faqih or Mujtahid) to take this responsibility in the first grade. But it was the task of the Minister of Revelation (Prophet Muhammad (s.a.w.) to comprehend and expound the spirit of the Book; to interpret its meanings and to formulate its laws and practical legislation in life under Divine Guidance.
Thus the relation between the two - the Book and the sunnah - looks like to a great extent the relation between a constitution and a law.
The constitution makes clear the essential origin of legislation and prescription of law. For instance, the clause speaks of the right to own property, but it is the law-maker which clarifies its details, and drafts the laws necessary for practical execution of this constitutional article and declaration of its details.
In like manner, the task of the Prophetic traditions sunnah is to translate the contents of the Qur'an and formulate them as practical laws for life.
For more details, it is worth mentioning that the sunnah is not a Prophetic judgement for formulating the Qur'anic spirit and explaining its contents through laws as the case in the relation between the constitution and law.
The sunnah is a Divine revelation and instruction both in its meaning and contents save that its literary pronunciation and form is said by the Messenger of Allah (s.a.w.) himself.
For example, the Holy Qur'an ascribes (determines) that the paying of the poor-dues zakat is obligatory but without clarifying its amounts or quantities nor the things on which it should be paid. But it is the Prophetic Tradition sunnah which looks after it by explaining it in detail. This explanation and detail has come through the utterance and practise of the Noble Messenger and his human normal speech. In order to continue the advantageous role of the sunnah, Allah willed that it should have leaders (Imams) after the Prophet who represent the conscious side and comprehend the spirit of the Qur'an and its contents in accordance with the Prophet's practice.
Therefore, the Imams of the Prophet's infallible Household, the Ahlul-Bait (peace be upon them all) represent the blessed path of guidance for the ummah. After them comes the role of the Jurisprudents (mujtahids or fuqaha') who undertake the task of judgement by reasoning in the light of the Qur'an and the sunnah to meet the changing needs of the human society. Thus, the dynamism of Ijtihad which is wide open till our present day, was necessary to expand the horizons of the Shari'ah and to enrich the human society with concepts and laws which are necessary for organizing the progress of mankind.
Therefore, Ijtihad is necessary wajib kifa'i and there should at least be a Mujtahid, in every age and era, to whom Muslims refer and upon whom they depend for understanding the Shari'ah and discovering its laws.
Islam has two main sources:
A- The Book (The Qur'an).
B- The Sunnah (The Prophetic Tradition).
It is only in the light of these two sources that laws should be made. The tragedy of Muslims, is, certain persons took fallible sources besides these two, and on the basis of their whims and personal opinions qiyas imposed themselves on unsuspecting and simple-minded Muslims as Imams or leaders of schools of Jurisprudence.
Later on, the ruling Abbasid Caliphs, who were total strangers to Islam and its teachings arbitrarily sanctioned the legitimacy of four self-contradictory schools of jurisprudence on the Muslims, ruling that the door of Ijtihad was closed.
But in Islamic Shari'ah, it is not necessary to accept these sources (the sources of qiyas and the like to which certain Mujtahids depend other than the Book and the Sunnah) except what tallies with the spirit of the Book and the sunnah. However, the followers of the schools of the Prophet's Ahlul-Bait, have always stayed clear of these innovations and kept the dynamism of Ijtihad open on the basis of the Book and the sunnah. Therefore, it is the duty of a rightly guided mujtahid or faqih cancel in all periods any of these sources which contradict the Book and the sunnah or bold no water before a scientific justification.
3. Kulaini, Usul min al-Kafi, p. 59, vol. 1, printed in 1388 A.H.
4. Mujtahid: A person who is an expert in Islamic jurisprudence (fiqh); he is also called faqih. He has a particular power and retigious authori and significance.
5. Wajib Kifa'i: An action which remains obligatory upon the Muslims as long as it remains unfulfilled, but if Some individuals carried it out, other Muslims are absolved from the responsibility, like the profession of medicine, judiciary, agriculture, bidding for what is right and bathing the corpse and praying for him ... etc.
6. Wajib 'aini: A deed which is obligatory upon an individual and the obligation still exists even if others perform it tike the daily ritual prayer, and fasting ... etc.
7. Kulaini, Usul min al-Kafi, p. 59, vol. 1, printed in 1388 A.H.
8. The late Abul-Qasim al-Khu'i, Tafsir al-Bayan, p. 23, printed in 1394 A.H. -1974 A.D.
9. Ibid, p. 30.